Can the North Carolina Marine Fisheries Commission regulate where, when, and how commercial fishermen can harvest menhaden in the near-shore Atlantic waters off the state's beach communities, and can the Commission use tourism impacts as a basis for those restrictions?

Plain-English summary

Menhaden are oily, schooling baitfish that swim in dense balls in the Atlantic coastal waters off North Carolina. They are the foundation of an old North Carolina commercial fishery (rendered for fish oil, fish meal, and as bait for other fisheries), and they are also an important food fish for game species like striped bass and bluefish, which makes them important to recreational fishermen. Large commercial menhaden boats fishing close to shore have been a long-running source of friction with beach communities and with recreational anglers who don't like watching dense purse-seine operations from the beach.

Representative E. David Redwine asked the AG whether the Marine Fisheries Commission had authority to restrict the time, place, season, or method of menhaden harvest in the near-shore Atlantic waters off North Carolina's beaches, and what bases could legitimately support such restrictions.

AG Mike Easley's office gave two answers:

Conservation-based regulation: yes. The Marine Fisheries Commission has statutory authority to regulate the time, place, seasons, and methods of harvesting menhaden in near-shore Atlantic waters along the state's coast, for conservation and management purposes. The opinion lists several legitimate conservation rationales: the role of menhaden as a food fish for other species, their use as bait for recreational fishermen, their commercial value, and the potential for conflict between recreational and commercial fishing. That interrelationship "may support the management and regulation of this fishery."

Tourism-based regulation: no. Restrictions based on tourism effects alone, without a conservation or management foundation, would exceed the Commission's statutory authority. The Commission's enabling statutes (G.S. §§ 113-132 and 143B-289.52) tie its powers to conservation and management of marine resources, not to coastal-economic protection generally. A pure tourism rationale would be vulnerable to challenge.

The moratorium overlay. The Commission's authority to expand existing near-shore menhaden restrictions, or impose similar restrictions in other coastal waters, was further limited by a statutory moratorium running under Session Laws 1993 (Reg. Sess., 1994), c. 576, s. 4, and Session Laws 1997, c. 400, s. 6.1. That moratorium was scheduled to expire on July 1, 1999, after which the Commission would regain full conservation-and-management authority over commercial and recreational marine fisheries in coastal waters.

The practical takeaway, as the opinion stood: the MFC could regulate menhaden on conservation grounds within whatever scope the moratorium left open, but had to clear two hurdles: (1) the rationale had to be conservation-based, not tourism-based; (2) until July 1, 1999, the moratorium constrained which new restrictions the Commission could put in place.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Marine Fisheries Commission's statutory framework has been amended repeatedly since 1999. Most prominently, North Carolina enacted a near-shore menhaden purse-seine ban in 2007 (S.L. 2007-407), which moved the commercial fishery off the state's beaches. The Commission's substantive authority has also continued to evolve through the Fisheries Reform Act framework. Anyone evaluating a present-day menhaden regulation must work from the current statutes and current administrative rules in 15A NCAC, not from this 1999 opinion.

Common questions readers actually have

What's the difference between a conservation rationale and a tourism rationale?

A conservation rationale ties the restriction to the health of the fishery: the population of menhaden, their role in the food web, prevention of overfishing, recovery of stressed stocks. A tourism rationale would tie the restriction to economic impacts on beach communities (visual pollution, perceived odor, loss of tourist revenue) without any showing about the fishery itself. The AG's view was that the legislature had given the MFC the first kind of authority but not the second; if the legislature wanted to authorize tourism-based fishery rules, it would have to say so.

Could a regulation have multiple rationales, including tourism?

The opinion does not directly address this. The cautious reading is that a regulation must be supported by a sufficient conservation rationale; tourism considerations may be relevant context but cannot be the sole or principal basis. A rule that is well-supported on conservation grounds is not invalidated because tourism happens to benefit.

Why was there a moratorium on MFC rulemaking?

The 1993-1994 legislative session imposed a moratorium that froze certain MFC rulemaking while broader fisheries reform was being studied. The 1997 legislature extended the moratorium. The result was a multi-year period during which the MFC could not freely add new commercial and recreational fishing regulations; the moratorium was set to lift July 1, 1999. The AG was advising that the Commission needed to wait that out for the regulations it might want.

Were menhaden boats actually fishing very close to the beach?

Historically, yes. Large purse-seine vessels would fish right outside the surf zone, sometimes within sight of swimmers. That visibility was the proximate driver of the question Representative Redwine asked. The conflict eventually led to the 2007 statutory ban on purse-seining for menhaden in nearshore waters off North Carolina's coast.

What happened after the moratorium lifted?

The Commission resumed its full conservation-and-management authority on July 1, 1999. Over the next decade and a half, North Carolina adopted increasingly detailed menhaden management rules, culminating in the 2007 nearshore purse-seine ban and various subsequent quota and gear restrictions tied to Atlantic States Marine Fisheries Commission coordination.

Background and statutory framework

The Marine Fisheries Commission's enabling statutes

N.C.G.S. § 113-132 sets out the broad authority of the Marine Fisheries Commission over coastal fisheries.

N.C.G.S. § 113-134 and 134.1 provide rulemaking authority over coastal fisheries.

N.C.G.S. § 113-182 addresses regulation of fisheries.

N.C.G.S. § 143B-289.52 is the general MFC rulemaking authority within the Department of Environment and Natural Resources structure.

The moratorium statutes

S.L. 1993 (Reg. Sess., 1994), c. 576, s. 4 imposed the initial moratorium on certain MFC rulemaking. S.L. 1997, c. 400, s. 6.1 extended the moratorium to July 1, 1999.

Why conservation is the touchstone

The MFC's powers are powers over a public-trust resource: the State's marine and estuarine fisheries. Public-trust regulation has historically been grounded in conservation and stewardship rather than in general economic regulation. The AG's analysis reflects that doctrinal point: the legislature gave the Commission powers tied to that public-trust purpose, and excursions into economic-protection territory would need separate statutory authorization.

The signing officials

The opinion was signed by Daniel C. Oakley, Senior Deputy Attorney General, and Francis W. Crawley, Special Deputy Attorney General. Copies went to Preston P. Pate, Jr., and Jimmy Johnson.

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-marine-fisheries-commission-to-regulate-menhaden-fishing/

Original opinion text

Best-effort transcription from the official source. The Sofya fetch returned only the second half of the letter; the first page was not retrieved. The linked landing page above is authoritative.

In your letter, you articulate several reasons for restricting the time, place, seasons, or methods of harvesting menhaden in the Atlantic Ocean adjacent to the State's beach communities that would be related to the conservation and management of the marine resources in the near shore waters. The presence of menhaden as a food fish for other species, and for bait for recreational fishermen, together with its commercial uses and the potential for conflict between recreational and commercial fishermen, demonstrates the sort of interrelationship that may support the management and regulation of this fishery. However, absent such a conservation or management basis, the Commission would be acting in excess of its statutory authority in expanding these current restrictions or placing similar restrictions in other coastal waters. N.C.G.S. §§ 113-132; 143B-289.52. In our opinion, a restriction based on tourism effects would be subject to challenge under the existing statutory authorities.

It should also be noted that the Marine Fisheries Commission's authority to expand these current restrictions or place similar restrictions in other coastal waters by the adoption of further rules is presently limited by the statutory moratorium which restricts the Commission's authority to regulate the commercial and recreational harvest of marine fisheries resources. Session Laws 1993 (Reg. Sess., 1994), c. 576, s. 4; Session Laws 1997, c. 400, s. 6.1. Upon the expiration of the moratorium on July 1, 1999, the Commission will regain full authority to regulate all activities connected with the conservation and regulation of marine and estuarine resources in the coastal waters.

In conclusion, except for the limitations discussed above, it is our opinion that the statutes now in effect provide authority to the Marine Fisheries Commission to regulate the time, place, seasons, and methods of harvesting menhaden in the near shore waters of the Atlantic Ocean along North Carolina's coast for the conservation and management of the State's marine and estuarine resources.

Thank you for your opinion request. We hope this analysis is useful to you.

Sincerely,

Daniel C. Oakley
Senior Deputy Attorney General

Francis W. Crawley
Special Deputy Attorney General

cc: Preston P. Pate, Jr.
Jimmy Johnson

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